Supreme Court made right decision to hear power plant challenge

By Patrick Morrisey West Virginia Attorney General

November 3, 2013

In the next few months, the U.S. Supreme Court will be wading back into the greenhouse gas debate, after agreeing to review the Environmental Protection Agency’s attempts to regulate greenhouse gas emissions from stationary sources such as power plants.

The question the Court will answer is part of an ongoing debate about the EPA’s role and authority in determining what type of emissions should be classified as pollutants and how they should be regulated.

I applaud the Supreme Court in its decision to consider the legal questions related to this matter. Earlier this year, our Office joined a legal brief with Kansas and Montana urging the Court to weigh in on this very case.

Yet even while the Supreme Court prepares to review one EPA restriction on new power plants, we are closely scrutinizing another.

In September, the EPA proposed emissions standards for new coal-fired power plants, and we have already found significant flaws. In particular, the proposed rule sets a standard for coal-burning power plants that would be seemingly impossible to meet unless the plants use carbon capture and storage (CCS) technology. But that does not comply with the law.

When the EPA establishes new performance standards under the Clean Air Act, the standards must reflect the application of the “best system of emission reduction” that the EPA has determined to be “adequately demonstrated.” CCS technology, however, is still experimental and thus fails to meet the statutory requirement. In fact, a recent Congressional Research Service report said no commercial ventures in the United States currently use the technology on an industrial scale.

The EPA said CCS technology is “feasible and available” because several coal-burning power plants under construction or in the planning phases intend to use it. But why can’t the EPA identify a single coal-burning power plant in the United States that is currently using CCS technology? The simple truth is that CCS technology is not yet ready on a commercial scale.

The EPA points to the construction of the coal gasification plant in Kemper County, Miss., as the best example of an “adequate” demonstration of CCS technology. The facts on the ground, however, demonstrate the opposite. Kemper is suffering $1 billion in cost overruns despite a promise of $270 million by the federal government and qualifying for special tax credits of $133 million. The company also has expressly refuted the EPA’s efforts to use the plant as an example, saying, “the unique characteristics that make the project the right choice for Mississippi cannot be consistently replicated on a national level.”

So who would pay for the EPA’s blatant overreach? Consumers in West Virginia and every other state, who will be forced to pay higher rates as utility companies try to recoup at least some of the cost of these massively expensive plants. Ratepayers in Kemper County have been subject to a 15 percent rate increase—and a further 7 percent rate increase is expected.

American Electric Power already has said it would pass on the incurred costs of CCS to West Virginia consumers if it could. The company, working collaboratively with a number of private companies and government agencies, once operated a pilot CCS program at its Mountaineer plant in Mason County. But in 2011, AEP shelved plans to build a full-scale, $668 million CCS plant at the same location because it was worried that state regulators would not allow the company to recoup its costs. We still don’t know if the technology can work on a commercial scale, but we do know hard working consumers will be the ones picking up the tab.

By effectively eliminating coal-burning power plants from the future of America’s energy equation, EPA’s proposed rule also threatens the future market for selling West Virginia coal. The real world consequences of making coal a less attractive and more expensive energy source would have devastating impacts on our state, her people and our economy. Because future power plants throughout the nation will be barred from burning West Virginia coal, more mines will close and more West Virginians will find themselves unemployed, as would electricians, mechanics, steelworkers, and retail workers, among many others, who all rely on a vibrant coal industry. The Obama EPA’s perverse ideological pipedream will drive more West Virginians into needless poverty.

Instead of allowing states and citizens the freedom to choose their own power source, the EPA has imposed a government-centered view of what’s right. The EPA’s dream to rid the world of coal is a nightmare for hardworking West Virginians.